The AR-15 And The Second
Amendment: No Respect

It's the best-selling type of rifle in America today, yet
the gun prohibition lobbies want to make it a crime for you to own one.

by Dave Kopel

America's 1st Freedom. April 2012

The U.S. Supreme Court's decision in
District of Columbia v. Heller seems to outlaw bans on AR-15s. Yet some courts are still upholding
prohibition of this rifle.

Whether you will have the choice five or 10 years from
now to buy an AR-15 is far from certain--and whether you will be able to keep the
AR-15 you may already own is uncertain as well.

Historically Speaking

The development of the rifle known today as the
AR-15 started in 1956. The strategy to ban it was unveiled in 1988.

At that time, Josh Sugarmann, former communications
director of the National Coalition to Ban Handguns, pointed out in a strategy
paper that the media had grown tired of the handgun issue, but "assault
weapons" would be novel to them.

Further, he added in the memo, "The semi-automatic
weapons' menacing looks, coupled with the public's confusion over fully
automatic machine guns versus semi-automatic assault weapons--anything that looks
like a machine gun is assumed to be a machine gun--can only increase the chance
of public support for restrictions on these weapons" ("Assault Weapons and
Accessories in America," Education Fund to End Handgun Violence and New Right
Watch, Sept. 1988).

Sugarmann was exactly right. The gun prohibition
groups successfully created and then exploited public confusion. In 1989,
California was the first state to ban so-called "assault rifles" or "assault
weapons." The gun-banners did not use the term "assault rifle" in the proper
technical sense--that is, an intermediate power combat rifle that has a selector
switch so that the gun can fire either automatically or semi-automatically.
Instead, the prohibitionists tricked legislatures into banning guns that could
only fire as
semi-autos, but which lookedlike selective-fire military rifles.

Fast Forward

Over the next several years, bans on the AR-15 and
many other semi-auto rifles were enacted in New Jersey, New York, Massachusetts,
Connecticut and the District of Columbia. The signature "achievement" of Bill
Clinton's first term as president was a national ban in 1994, prohibiting the
manufacture of these firearms with their usual features such as adjustable
stocks and flash suppressors.

The Clinton ban had a "sunset clause," so it expired in
2004. As firearm manufacturers resumed production of these guns in their
original form, the gun prohibition groups predicted mass carnage. Of course, the
predictions never came true. The AR-15 and similar guns had rarely been used in
crime before the ban, and criminal misuse remained rare after 2004.

The AR-15 has become very popular with law-abiding
citizens. By 2007, even The New York Times wrote that the AR-15 and similar guns were often "the guns of choice for many
hunters, target shooters and would-be home defenders" (Andrew Park, "A
Hot-Selling Weapon, an Inviting Target," June 3, 2007). In response to consumer
demand, nearly a half million AR-15-type rifles were manufactured in the United
States in 2009. These days, you can even buy one at Wal-Mart, which is a pretty
good sign that these are popular, mass-market products.

While the prohibition groups hysterically clamor about
"assault weapons," more and more people are buying AR-15s, just as they've
bought other rifles descended from military arms throughout history. There is a
very long tradition in which the civilian versions of service rifles have become
standard firearms for hunting, target shooting and lawful self-defense. The
Spencer repeating rifles and 1903 Springfield bolt-action followed this path and
so did the M1 Garand after World War II. This isn't unique to America; the
military 1898 Mauser quickly became one of the most popular actions for hunting
rifles in the world. Today, the AR-15 continues that venerable tradition.

Yet New York City Mayor Michael Bloomberg, the gun-ban
lobbies and the multitudinous groups funded by George Soros have kept the AR-15
illegal in some jurisdictions, and they continue to push for a national ban.
President Obama ran on a platform in 2008 calling for a national ban, and as a
U.S. senator and an Illinois state senator he voted to outlaw the AR-15 and many
other guns.

The prohibitionists have convinced tens of millions of
people that the AR-15 is some sort of ultra-powerful firearm that is meant to be
spray-fired from the hip, for rapidly slaughtering people.

In truth, the AR-15 is at the low end of power among
rifles. And when you pull the trigger, it only fires one round.

Yet owning an AR-15 is a serious crime in California,
where one of every nine Americans resides. Additionally, north of Pennsylvania,
the large majority of Americans live in states where to own an AR-15 is to be
guilty of a crime comparable to a violent felony. Disgracefully, the AR-15 is
also outlawed in our nation's capital--a city where constitutional rights ought
to be especially secure.

The Heller Decision

What did the landmark Heller decision have
to say about banning guns like the AR-15? Justice Scalia's opinion for the Court
says that the Second Amendment "does not protect those weapons not typically
possessed by law-abiding citizens for lawful purposes, such as short-barreled
shotguns." The Heller decision interpreted a 1939 Supreme Court case,
United States v. Miller,
as standing for the principle that the Second Amendment has historically
protected guns "in common use at the time," rather than "dangerous and unusual
weapons." While some scholars have disagreed with the court's reasoning, the
court went on to suggest that bans on short shotguns, short rifles and machine
guns are not unconstitutional because those guns are not among the type of
"arms" protected by the Second Amendment right.

Almost immediately after
Heller was decided,
the Brady Campaign began insisting that bans on the AR-15 and all other
so-called "assault weapons" were allowed, because these guns were "dangerous"
and "unusual." That's a major misreading of the
Heller decision, but
essentially the same propaganda that anti-gun groups have been pushing since the
1980s.

In fact, the guns are not more "dangerous" than other
standard firearms. They do not fire faster, nor do they fire more powerful
ammunition. And they are certainly not "unusual." Today, the AR-15 is the
best-selling firearm in the United States. Instead, widespread experience
demonstrates the AR-15 is "in common use" and is "typically possessed by
law-abiding citizens for lawful purposes." There are more than 3 million of them
in the hands of law-abiding American citizens.

In 2009, the California Court of Appeal (the court
between the state trial courts and the state Supreme Court) upheld the state's
"assault weapon" ban. People v. James involved a criminal defendant who continued to possess firearms in violation of
a restraining order. Michael James was prosecuted not only for violation of the
restraining order, but also for possessing guns that even law-abiding
Californians cannot legally possess, including a Bushmaster XM-15 (a variant of the
AR-15).

The three-judge panel ruled that the Bushmaster is
entitled to no protection under the Second Amendment. To uphold the ban, the
court relied almost entirely on the legislative "findings" that had been part of
the enactment of the California ban by a panicked state legislature.

According to the 1989 California legislature, the AR-15
"has such a high rate of fire and capacity for firepower that its function as a
legitimate sports or recreational firearm is substantially outweighed by the
danger that it can be used to kill and injure human beings." The legislature
also claimed that it had no intent "to place restrictions on the use of those
weapons which are primarily designed and intended for hunting, target practice
or other legitimate sports or recreational activities."

The legislative findings about rate of fire and
danger are palpably false. Moreover, the legislative findings are a tacit
admission that the legislature entirely disregarded whether the AR-15 was
suitable for self-defense, because the legislature did not include self-defense
among the "legitimate" uses of firearms. Opposition to self-defense is the
longstanding position of the gun prohibitionist groups. The
Heller decision,
however, declares that self-defense is the "core" of the Second Amendment. The
James court
either overlooked or ignored the legislature's illegitimate, unconstitutional
desire for people to have only "recreational" guns and not self-defense guns.

The James court therefore wrongly concluded that the AR-15 and similar firearms "are not
in common use by law-abiding citizens for lawful purposes."

For understandable reasons, courts tend to be hostile to
Second Amendment claims when they are raised by criminals, such as James. The
possibility of victory is greater when a carefully framed case is brought by the
National Rifle Association on behalf of law-abiding citizens.

Heller II

Such was the challenge to the District of Columbia's
"assault weapon" ban brought by the NRA. The case is known as
Heller II, since the
lead plaintiff is Dick Heller, the winning plaintiff in the first
Heller case. In the
case, Heller and several
other D.C. gun owners challenged the ban, along with several other provisions of
the District's laws.

D.C.'s "assault weapon" ban is the most extreme in the
nation. The D.C. Council has outlawed all semi-auto firearms that take
detachable magazines and that have one or more characteristics from a list of
supposedly military features. The District also bans "[a]ny firearm that the
Chief may designate as an assault weapon by rule, based on a determination that
the firearm would reasonably pose the same or similar danger to the health,
safety, and security of the residents of the District as those weapons
enumerated."

The attorneys arguing the case for Heller and the other
plaintiffs were longtime gun law experts Stephen Halbrook and Richard Gardiner.
The mass of evidence they presented proved beyond any doubt that the AR-15 is a
very common firearm and is typically used by law-abiding citizens for lawful
purposes. Of course, they also presented evidence about the other guns banned by
D.C.

When the case got to the United States Court of Appeals
for the District of Columbia, the three-judge panel split 2-1, with two of the
judges voting to uphold the D.C. ban. Judge Douglas Ginsburg (no relation to
Supreme Court Justice Ruth Bader Ginsburg) wrote the opinion for the majority.

He accepted the plaintiffs' proof about the common use of
AR-15s: "We think it clear enough in the record that semi-automatic rifles and
magazines holding more than ten rounds are indeed in 'common use,' as the
plaintiffs contend. Approximately 1.6 million AR-15s alone have been
manufactured since 1986, and in 2007 this one popular model accounted for 5.5
percent of all firearms, and 14.4 percent of all rifles, produced in the U.S.
for the domestic market. As for magazines, 18 percent of all firearms owned by
civilians in 1994 were equipped with magazines holding more than ten rounds, and
approximately 4.7 million more such magazines were imported into the United
States between 1995 and 2000."

But, Judge Ginsburg continued, even if AR-15 rifles and
normal sized magazines are protected by the Second Amendment, they may still be
banned.

How could this be?

In modern constitutional law jurisprudence, one of
the common ways for judges to examine an issue is through "tiers" of "scrutiny."
First, the judge decides if something is part of a constitutional right.
According to Heller II,
rifles like the AR-15 are part of the Second Amendment right. (In contrast,
according to the Supreme Court's original
Heller decision, machine guns are not part of
the Second Amendment right.)

Once it has been ascertained that something is part of a
right, then the court decides to apply either "strict scrutiny" or "intermediate
scrutiny." The strict scrutiny test requires that the government have a
"compelling" interest, and that the law be "necessary" to achieve that
compelling state interest. Examples of issues that trigger strict scrutiny are
government suppression of speech based on the content of the speech, as well as
government discrimination on the basis of race.

In other constitutional situations, a court will apply
"intermediate scrutiny." Then, the government must have an "important" interest,
and the law must have a "substantial" relationship to achieving that interest.
Intermediate scrutiny is applied to government discrimination on the basis of
sex, and to "time, place and manner" regulation of speech in public places.

The Supreme Court in
Heller did not say
whether the strict/intermediate system should be used in Second Amendment cases.
However, since Heller many lower courts have been using this system, since it is familiar and well
developed.

Judge Ginsburg in
Heller II said that intermediate scrutiny
should apply to the D.C. ban on semi-auto rifles. Relying heavily on the Brady
Campaign's testimony at a D.C. Council hearing, the judge announced that
semi-auto rifles are so dangerous that the D.C. ban passed intermediate
scrutiny.

Faulty Reasoning

The majority's reasoning in Heller II had several
problems. First of all, the judges picked the wrong standard. As First Amendment
jurisprudence shows, when the government regulates how a right is exercised in a
public place, then intermediate scrutiny may be the appropriate standard. But
when the government entirely bans one form of exercise of the right, then strict
scrutiny is necessary. Because the D.C. law was a total ban on possession of
many firearms in the home, rather than a regulation about how they could be used
or transported in public, strict scrutiny should have been the rule.

Second, dissenting Judge Brett Kavanaugh pointed
out the error in how the majority actually used strict scrutiny. Under
Heller, semi-auto
handguns, as a general class, are constitutionally protected. (That's because
Heller protects handguns in general, and 80 percent of new handguns are semi-autos.)
Therefore, the mere fact that a long gun is semi-automatic cannot be a
constitutionally legitimate reason to ban it. As Judge Kavanaugh wrote, "In
attempting to distinguish away Heller's
protection of semi-automatic handguns, the majority opinion suggests that
semi-automatic rifles are almost as dangerous as automatic rifles (that is,
machine guns) because semi-automatic rifles fire 'almost as rapidly.' ... Putting
aside that the majority opinion's data indicate that semi-automatics actually
fire two-and-a-half times slower than automatics, the problem with the
comparison is that semi-automatic rifles fire at the same general rate as
semi-automatic handguns. And semi-automatic handguns are constitutionally
protected under the Supreme Court's decision in
Heller. So the
majority opinion cannot legitimately distinguish
Helleron that
basis."

The majority had swallowed the Brady Center's absurd
claim that semi-auto rifles with detachable magazines are designed for
"offensive military" action. Judge Kavanaugh noted that officers of the D.C.
Metropolitan Police Department carry semi-auto rifles in their patrol cars. The
only reason for D.C. police to carry any type of firearm, including a rifle,
would be for lawful self-defense or defense of others.

Accordingly, the actions of the D.C. police prove the
falsity of the D.C. Council's claim that semi-auto rifles are primarily for
offensive military use. And there is the obvious fact that the many millions of
Americans who have owned such rifles for decades have been using them for lawful
defense and for sport--not for "offensive military" purposes.

Judge Kavanaugh also argued that the Supreme Court
in Heller had
refused to employ the strict/intermediate scrutiny system. Instead, the Court
had suggested that the gun controls that were "presumptively lawful" (e.g., bans
on gun possession by felons or the mentally ill; regulations on the commercial
sale of firearms) were those that had a solid basis in American history and
tradition. But bans on semi-auto rifles have no such basis in history and
tradition. Indeed, D.C.'s extremely broad ban has no counterpart anywhere else
in the United States, or ever in American history.

What comes next depends on this November's elections. The
Constitution gives Congress plenary power over D.C., so Congress could pass, and
a new president could sign a law repealing the outrageous Second Amendment
violations in our nation's capital. Obama, however, would certainly veto such a
law.

Second, the president who is elected in 2012 will
likely have the opportunity to make several Supreme Court appointments. One more
Obama appointment could be enough to overturn the 5-4
Heller decision. Or
an Obama court could interpret Heller in a constricted manner, as did the judges in
James and
Heller II, thereby giving sanction to semi-auto
bans and other restrictions nationwide. That's an issue that every AR-15
owner, and every gun owner, should remember on Election Day.

Make a donation to support Dave Kopel's work in defense of constitutional
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